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DOL Crackdown on H-1 Employer for Back Wages
In a case decided by the U.S. Department of Labor's Office of Administrative Law Judges (OALJ) on April 30, 2003, an employer was found liable for back wages starting from the time when the employee presented herself for employment to the time when INS (now BCIS) acted on the employer's request for termination of the H1B petition. The OALJ made this finding, notwithstanding the fact that the employer, on an earlier date, had made written request to INS for revocation of the petition and that the employee had known of the termination of employment prior to INS' revocation of the H1B petition.
BACKGROUND ON THE CASE
The employee's H1B was valid from January 24, 2001 through November 2, 2002. However, due to medical problems, she did not make herself available for employment until April 4, 2001. At that time there were no assignments for her but both she and the employer attempted to place her with a client. On April 10, 2001, the employer determined that the employee should work on in-house projects to improve her skills. Thereafter, the employer claimed that they were unable to reach her via telephone. It is noteworthy that the OALJ noted that the employer previously had success in reaching the employee by eMail but did not attempt to reach her in this manner for the in-house project. In June 2001, unable to contact her via telephone, the employer stated that they decided not to continue to seek placement for the employee.
When Was the Employee Terminated?
Despite their decision to terminate in June 2001, the employer notified neither the employee nor the INS of the decision to terminate the employer / employee relationship until September 2001. On September 14, 2001, the employer mailed a letter to the employee to inform her that a letter requesting H1B revocation would be sent to the INS in the near future. Finally, on September 28, 2001, the employer sent a letter to the INS asking for the H1B revocation. The employee never received the September 14, 2001 letter, as she had moved since the employer database had last been updated. The employee periodically had updated her address on copies of her resume that had been sent to the employer's office in her attempts to obtain client project work. She was not aware of the termination until October 30, 2001, when she called the office. In reaction to the news, she filed a change of status request with the INS on November 1, 2001, requesting H-4 classification based on her husband's H1B status. The INS finally acted on the company's H1B termination request of September 14, 2001 about four months later on January 3, 2002. During the entire period from April 4, 2001 to January 3, 2002, the employer did not pay the employee any wages, stating that she never really performed any work for the company or its clients.
Findings of the Judge
Consistent with the DOL's frequent interpretations, the Judge found that the employer / employee relationship began on April 4, 2001. The controversial finding in this case is the termination date: January 3, 2002. Essentially, the Judge found that there was no bona fide or good faith termination of the employment relationship until the date that the INS acted on the termination request. The September 2001 termination notice and request to INS was considered the "Employer's unilateral effort to end the employment relationship ... [that] does not equate to a bona fide termination of the employment relationship."
Further, even once the employee discovered the termination sent by the employer to the, then, INS on October 30, 2001, the Judge found that the employee would have worked for the employer from October 30, 2001 through January 3, 2002, if given the opportunity. He, therefore, classified that time as a period of nonproductive status due to a decision by the employer and, therefore, a period for which the employer owed back wages to the employee.
DOL Crackdown on H-1 Employer for Back Wages
In a case decided by the U.S. Department of Labor's Office of Administrative Law Judges (OALJ) on April 30, 2003, an employer was found liable for back wages starting from the time when the employee presented herself for employment to the time when INS (now BCIS) acted on the employer's request for termination of the H1B petition. The OALJ made this finding, notwithstanding the fact that the employer, on an earlier date, had made written request to INS for revocation of the petition and that the employee had known of the termination of employment prior to INS' revocation of the H1B petition.
BACKGROUND ON THE CASE
The employee's H1B was valid from January 24, 2001 through November 2, 2002. However, due to medical problems, she did not make herself available for employment until April 4, 2001. At that time there were no assignments for her but both she and the employer attempted to place her with a client. On April 10, 2001, the employer determined that the employee should work on in-house projects to improve her skills. Thereafter, the employer claimed that they were unable to reach her via telephone. It is noteworthy that the OALJ noted that the employer previously had success in reaching the employee by eMail but did not attempt to reach her in this manner for the in-house project. In June 2001, unable to contact her via telephone, the employer stated that they decided not to continue to seek placement for the employee.
When Was the Employee Terminated?
Despite their decision to terminate in June 2001, the employer notified neither the employee nor the INS of the decision to terminate the employer / employee relationship until September 2001. On September 14, 2001, the employer mailed a letter to the employee to inform her that a letter requesting H1B revocation would be sent to the INS in the near future. Finally, on September 28, 2001, the employer sent a letter to the INS asking for the H1B revocation. The employee never received the September 14, 2001 letter, as she had moved since the employer database had last been updated. The employee periodically had updated her address on copies of her resume that had been sent to the employer's office in her attempts to obtain client project work. She was not aware of the termination until October 30, 2001, when she called the office. In reaction to the news, she filed a change of status request with the INS on November 1, 2001, requesting H-4 classification based on her husband's H1B status. The INS finally acted on the company's H1B termination request of September 14, 2001 about four months later on January 3, 2002. During the entire period from April 4, 2001 to January 3, 2002, the employer did not pay the employee any wages, stating that she never really performed any work for the company or its clients.
Findings of the Judge
Consistent with the DOL's frequent interpretations, the Judge found that the employer / employee relationship began on April 4, 2001. The controversial finding in this case is the termination date: January 3, 2002. Essentially, the Judge found that there was no bona fide or good faith termination of the employment relationship until the date that the INS acted on the termination request. The September 2001 termination notice and request to INS was considered the "Employer's unilateral effort to end the employment relationship ... [that] does not equate to a bona fide termination of the employment relationship."
Further, even once the employee discovered the termination sent by the employer to the, then, INS on October 30, 2001, the Judge found that the employee would have worked for the employer from October 30, 2001 through January 3, 2002, if given the opportunity. He, therefore, classified that time as a period of nonproductive status due to a decision by the employer and, therefore, a period for which the employer owed back wages to the employee.